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Feds pare back NSA leak case to shield technology

Federal prosecutors have decided to drop all references to a specific, classified National Security Agency initiative at the upcoming leak-related trial of former NSA official Thomas Drake, rather than see details of that effort become public.

Judge Richard Bennett ruled last week that a substitution the government wanted to use to obscure the details of the NSA technology was insufficient to allow Drake to defend himself against the charges he is facing, which include ten felony counts of improperly retaining classified information, obstruction of justice and making false statements to investigators, according to a court filing.

In a letter filed with the court Sunday, prosecutors William Welch and John Pearson said that in light of the judge's ruling the government would forgo the evidence about that initiative.

"As a result of this ruling, the government has decided to excise all reference to that technology from its case. The government will not rely on the classified information related to that technology as part of its proof, not will it indicate to the jury that the documents found in the defendants home relate to the NSA's targeting of that technology," the prosecutors wrote. "This will allow continued protection of the details of the NSA's efforts in this area, while simultaneously protecting the defendants constitutional ability to present his defense."

The decision means the government is abandoning four exhibits it planned to introduce at Drake's trial, set to begin Monday. Two other exhibits will be redacted to remove references to the technology in question, which was not identified more specifically in the prosecutors' letter.

Drake has denied deliberately retaining any classified information at home or leaking it to anyone. He maintains that he kept a series of files of unclassified information to support an inspector general's complaint that he and others had pursued, alleging that NSA was wasting money on an inefficient and ineffective surveillance technology when a simpler, cheaper technology was available.

The prosecutors' decision has echoes of the 2009 Justice Department decision to drop its long-running prosecution of two pro-Israel lobbyists after a series of adverse rulings from a federal judge in Virginia. However, in Drake's case, no charges have been dropped, just a portion of the proof the government wanted to offer.

"From the government's point of view, this ruling is not a reason to reconsider the prosecution. They’re not pulling back. They’re simply reordering their case," said Steven Aftergood, a classified information expert with the Federation of American Scientists.

"In the fantasy of Drake suppoorters, the [judge's] ruling could have been a pretext for withdrawing the prosecution, as happened in the [American Israel Public Affairs Committee] case but that's not the choice they’ve made. They’ve said, 'We'll go ahead and work around that obstacle,'" Aftergood added.